Saturday, December 30, 2006

Goldscheider:What's at stake in Commonwealth v. LaGuerSaturday, December 30, 2006

Next Thursday, a couple of hours before the new governor gets sworn in, the Supreme Judicial Court will hear a challenge to Benjamin LaGuer's 1984 conviction for raping his a 59-year-old neighbor.

James C. Rehnquist, son of the late chief justice, will argue that the commonwealth's failure to turn over a State Police report made the day LaGuer was arrested, showing that four fingerprints on a key piece of evidence were not his, should invalidate the verdict.

This may seem like a technicality. It isn't for two important reasons: 1) Anything that violates our constitutional guarantee to a fair trial is never a technicality. We have a presumption of innocence because every defendant might indeed be innocent. 2) A great deal of evidence, including that fingerprint report, says LaGuer did not commit the crime.

LaGuer became a signature issue in the Massachusetts governor's race when Republican Kerry Healey blanketed the airwaves with two 30-second spots trying to bring Democrat Deval Patrick down by casting LaGuer as a latter day Willie Horton. Patrick had once supported parole and then a DNA test for the inmate.

It would be a sad day if that blitz prejudices the judiciary against LaGuer. Tactics Sandra L. Hautanen, arguing for the Worcester District Attorney, deploys are shockingly dishonest and should frighten anyone who cares about the rule of law and basic fairness. She has rolled out the same playbook DA John J. Conte, whose term in office ends the day before the hearing, has used to defend the conviction for 23 years: First recite the horrendous nature of the crime (which no one disputes), and then make it look like the case against LaGuer was so overwhelming that constitutional niceties about a fair trial are irrelevant.

This tactic is designed to neither get at the truth of who committed this crime, nor ensure procedural integrity. As a result both are subverted. That is not only bad for justice, but undermines our basic values.

The unstated premise behind Hautanen's filings is that the victim's eye witness identification of LaGuer was so strong that it would be politically risky for any judge to overturn the verdict. But a careful review of the record shows that this is just not so. Aside from being kept in the dark about the exculpatory fingerprint report, the jury was unaware that the victim had a long history of mental illness. That is by no means her fault and in no way negates the fact that she was grotesquely violated. But, when taken together with indicators of LaGuer's innocence, such as the fingerprint report and that a man of similar age, height, build and ethnicity, who frequented the building and who had a known history of sexual misconduct, was ignored by the investigating detective, the victim's mental state should raise cautionary flags about the reliability of a cross racial identification that sent LaGuer to prison for life.

LaGuer could have gotten his freedom at his first parole hearing in 1998 had he admitted to the crime. He instead pursued DNA testing in an effort to prove his innocence. After a four-year process which in the end revealed significant problems with the way the evidence was handled, a test LaGuer fought hard to obtain seemed to link him to the crime. Hautanen raises this in her filings as well, even though it has no bearing on the fundamental procedural issues before the court. Worse, she doesn't acknowledge that four highly regarded DNA experts have since studied the evidence chain of custody together with the testing reports and given unambiguous written opinions that the results are unreliable.

The problems with Hautanen's filings go beyond errors of omission and contain instances of blatantly misstating the factual record. Her untruths extend to earlier blood type evidence that has been scientifically discredited, yet she perpetuates unquestionably false arguments.

A prosecutorial strategy that rests on lies, omissions and intimidation should not be tolerated by the courts or by the public. Our liberties are too precious to be sacrificed because of a residue of public opinion from a cynical and ill-informed political campaign. Kerry Healey's lunge for votes was built on and reinforced by calculated efforts by prosecutors to turn justice on its head.

As NECN's Jim Braude said on the air recently, despite the beating he took during the campaign, might Deval Patrick have gotten this one right?

Thursday, December 28, 2006

As the year comes to an end with the passing of several notables in quick succession, I can't help but remember others who passed from the scene this year. Among them was author William Styron, who died on November first. The date happens to have been in the middle of a campaign in which now Governor Elect Deval Patrick was being pilloried for having supported Ben LaGuer's parole bids. In looking through my files this evening I came across this letter.

Much happened in LaGuer's life since that letter was written, including a 2002 DNA test which seemed to place LaGuer at the scene of the rape he steadfastly denies committing. When I started looking into that DNA test I found that it was totally unreliable because, as has since been noted by several highly regarded DNA experts, items from his apartment were improperly mixed with the rest of the evidence.

But that's not the point of this post. Once I started putting the pieces together I contacted people who had supported Ben before that botched DNA test. Styron was among them. I was a little apprehensive about intruding into Styron's life and at the same time curious about the depth of his concerns regarding Ben's plight. Styron not only took my call graciously and lingered to chat, but he expressed genuine curiosity about the case and how it was going. To him it didn't take a huge leap of imagination to entertain the idea that the supposed scientific certainty of a DNA test might be compromised by human frailty. It was a very heartening conversation at a time when it was hard to get people to listen.

Next week LaGuer's case goes before the Supreme Judicial Court on the very day Patrick will shed the "elect" part of his title and be sworn in as governor of the commonwealth. Rediscovering this letter reminded me that Patrick was in very good company when he advocated on Ben's behalf in the run up to his parole dates.

Sunday, December 24, 2006

The first picture here is of Raymond and I at my Uncle's house in New Hampshire. The next photos have me with my mother, my uncle Paul (big guy huh?!), and my youngest first cousins Cole and Haley. Ray is opening a present Cole gave him, adults are trying to hide in the kitchen from the children, and my mother ("Aunty Ann") plays with the kids and opens one of her gifts. We saw some great decorations outside in my old neighborhood, so we stopped to take photos to share with you. Lastly, Ray and I are at home wishing all a very happy holiday season!

Saturday, December 23, 2006

Hi folks. I just posted this OPEN THREAD over at Blue Mass Group. Anyone (with any perspective!) can head over there to join the discussion. If you don't have a BMG account, you might consider opening one. It's easy. I'll also monitor the comments box here at Live, Love & Learn.

As many of you know Ben LaGuer's case is going to oral arguments in the SJC on January 4. For 23 years he has been claiming his innocence of a vicious rape. I have been posting to BMG about the case since last June. The case and the current round of appeals raise many many issues which I plan to get into during the next two weeks. I've also opened accounts on MyDD and Daily Kos. I'll explain in another post why I think it is important that the NetRoots be informed about what's going on.

I'll post another open thread on the topic next week as a lot of people are away from their computers right now. But I'll be checking in pretty regularly over the Christmas weekend so I want to invite anyone who has any questions, comments or perspectives on the case whatsoever to post them. I'll do my best to answer every post whether it has to do with the facts of the case, legal issues it raises, or how the current process has unfolded. The last part has obviously been affected by the politicization of the case during the governor's race. If you are not familiar with the case, visit the Web site I maintain at www.BenLaGuer.com. In the meantime, please use the OPEN THREAD to join the discussion.

Wednesday, December 20, 2006

Co-sponsored by The Gay and Lesbian Anti-Violence Project And The Religious Coalition for the Freedom to Marry

In response to the violence perpetrated by Larry Cirignano, Executive Director of Catholic Citizenship against pro-marriage equality demonstrator Sarah Loy at the "Rally for Democracy" at Worcester City Hall on December 16, 2006

A Candlelight Vigil will be held on Wednesday, January 10, 2007, in the early evening Tentative plan is to gather at Copley Square, and process to the offices of Catholic Citizenship at 198 Tremont Street in Boston.

There will be a call to dialogue to anti-marriage activists in Catholic Citizenship, the Catholic League, and the Archdiocese of Boston, as we seek to move beyond the bitter and divisive debate over the proposed ban on same-sex marriage that has raged for over 3 years now. We seek to affirm peace, tolerance and mutual respect for all citizens of the Commonwealth. The tone will be respectful as we seek to dispel the anger and aggressiveness that culminated in the violence in Worcester on Saturday.

Planning still to come. Questions, suggestions, and input welcome. Please forward this announcement to friends, family, and comrades. Contact: dgorton@verizon.net(preferred) or Don Gorton at 617-262-2381

Tuesday, December 19, 2006

The most reveiling details yet in the assault at the Worcester Anti-Gay rally have just been released in EdgeBoston.com, including Mr. Cirignano's admission to Worcester police that he had in fact pushed Mrs. Loy to the ground.

"Officers did not witness the incident, Worcester police spokesperson Sgt. Kerry Hazelhurst told EDGE Dec. 19. If they had, they would have placed Cirignano under arrest on a misdemeanor charge, he said. "He’s already admitted that he touched her," Hazelhurst reported. Under Massachusetts law, a person can be charged with assault and battery by merely touching another person if the touch is unwanted, Hazelhurst explained. "He pushed her down and he admits that as well."

WORCESTER— Police have filed a criminal complaint against the executive director of Boston-based Catholic Citizenship on allegations he pushed a female counter-demonstrator to the ground during an anti-gay marriage rally Saturday outside City Hall.

I think that it is high time people start asking Raymond Flynn and Cardinal O'Maley what actions they intend on taking in this matter. Cirignano already publicly admitted to "ecorting" Mrs. Loy, which amounts to assault. Unauthorized touching of another person is illegal, and he has made it clear he crossed that line, so the witnesses testimony will only serve to prove how far things went. Personally I would expect a man of Larry Cirignano's position to have a better understanding of the law than to put his hands on anyone at a rally like this when there were police there to control the crowd. Now he will have to face the consequences of his actions, whether he comes clean on the truth or not.

I am writing to express grave concern over the incident reported to have occurred at your "Rally for Democracy" in Worcester on December 16, 2006, involving the Executive Director of Catholic Citizenship, Larry Cirignano. The use of force against a pro-marriage equality demonstrator, as reported in yesterday's Worcester Telegram and Gazette, is a serious matter. While Mr. Cirignano, in today's Boston Globe, denies that he pushed the target of the incident, Ms. Sarah Loy, to the ground, he apparently admits that he laid hands on her in an effort to interfere with her exercise of constitutionally protected rights. There apparently is no dispute that Ms. Loy fell down, irrespective of whether Mr. Cirignano intended the fall to happen. There are reports that Ms. Loy suffered cuts and bruises.

This episode represents a regrettable development in the divisive fight to ban same-sex marriage in Massachusetts and throughout the United States. It is my understanding that assault and battery charges are pending. Moreover, reports suggest that Mr. Cirignano violated Ms. Loy's civil rights by the exercise of force. It is not clear whether Ms. Loy suffered injury within the meaning of the Massachusetts Civil Rights Act, but even a bruise can be enough to elevate the offense from a misdemeanor to a felony.

I trust that your organization does not condone actions which forcibly deprive citizens of their constitutionally protected rights, or resort to unlawful battery as a means of promoting a ban on same-sex marriage. I accordingly ask that you place Mr. Cirignano on administrative leave from his position with your organization while the matter is investigated. I also ask that Catholic Citizenship formally apologize to Ms. Loy for the offense to her person and her liberty, going beyond the statement attributed to the organization in today's Boston Globe.

As Mayor of Boston, you earned a reputation for vigilance in protecting the civil rights of citizens. I am hopeful that you will see the importance of the serious civil rights concerns that are at stake in this matter, and deal appropriately with Mr. Cirignano's conduct.

Sincerely,

Don GortonChair, The Gay and Lesbian Anti-Violence Project

There is now a chorus of people calling for Larry Cirignano's resignation over his unprovoked attack on Mrs. Sarah Loy. If you have not had the opportunity to fully inform yourself on this issue, check out the many blogs covering the story, like KnowThyNeighbor.org. I am aghast at what Mr. Cirignano has done, but it just keeps getting worse. Be sure to read his email correspondance with people even after this event was covered in the newspaper. It seems to me that the man running Catholic Citizenship is a lunatic.

Sunday, December 17, 2006

I just have one question. Can there be an exceptable excuse for putting your hands on a woman and throwing her to the ground? It makes me wonder what type of a person Larry Cirignano really is. Shame on you sir, and shame on anyone that would try to defend your actions. Clearly there are bigger problems you should be dealing with than gay marriage; like anger management.

Efforts are being made to sweep this story under the rug, but it seems that the truth is leaking out. KnowThyNeighbor.org was on location at the Worcester Anti-Gay Rally this Saturday, and got first hand photos of Sarah Loy 27, of Worcester, who was attacked by none other than Larry Cirignano, executive director of the Boston-based Catholic Citizenship Group. Several witnesses reported to police that Mr. Cirignano left his position standing with others near the podium, walked over to Mrs. Loy, placed a hand on each shoulder, and threw her to the ground. Mrs. Loy hit her head on the concrete sidewalk, but seemed more shaken than harmed by the attack.

Worcester police sergeant Wells said of the attack, "We cannot arrest him right now because the law states we have to actually see the attack, and none of my men did. You will have your day in court though" when speaking to Mrs. Loy. It seemed clear that no one has a right to put their hands on another person, and that Mr. Cirignano's actions did amount to assault is this veteran policeman's opinion. A visibly shaken Mrs. Loy and her husband Brian Loy say that they are outraged that a man of Mr. Cirignano's position would act so hatefully, and they plan on pursuing this in court as advised. I was there to hear this with my own ears.

Wednesday, December 13, 2006

The Committee for Public Counsel Services (CPCS) filed an amicus brief with the SJC last week in support of Benjamin LaGuer's bid for a new trial. You can read the entire brief HERE. It and all the recent filings in the case are available at BenLaGuer.com. Excerpts follow:

"In Criminal prosecutions the Commonwealth is routinely in sole possession of evidence which is critical to the defense. As a result, the defendant must rely upon the prosecution to properly comply with the discovery rules in order to ensure a fair trial. The outcome of this appeal will likely have a significant impact on the manner in which discovery violations are handled, and, as a result, will likely influence the level of care prosecutors dedicate to meeting their discovery obligations....

It is essential to motivate prosecutors to produce exculpatory evidence because the Commonwealth is often in exclusive possession of favorable evidence. If the prosecutor fails to come forward, the defendant will have no access to the exculpatory evidence, and the "truth-finding process of trial" will be corrupted....

It is undisputed that, (1) the state police prepared a fingerprint report two days after the incident, (2) contrary to pretrial assertions by the prosecutor and the trial testimony of the lead detective, the report established that the police lifted four complete fingerprints from the base of the phone, and those prints conclusively do not match the defendant's fingerprints, (3) the report was under the custody or control of the prosecution, and (4) no part of the report was provided to the defendant until close to seventeen years after trial....

...[A]ccording to the portion of the fingerprint report still available, Detective Carignan had been personally notified long before trial by the Commonwealth's fingerprint expert that four fingerprints were lifted from the phone, and that these prints were conclusively determined to not match the defendant's fingerprints. Detective Carignan's misleading testimony is properly characterized as gross negligence."

Mitt Romney is selling himself now as a radical conservative, hoping that the same voters that helped President Bush get into and maintain the White House will do the same for him. This flies in the face of what he has sold himself as in the past, and it begs the question, will people buy it?

When running for Senate against Ted Kennedy, Mitt Romney had this to say about gay rights:

"For some voters, it might be enough to simply match my opponent's record in this area. But I believe we can and must do better. If we are to achieve the goals we share, we must make equality for gays and lesbians a mainstream concern. My opponent cannot do this. I can and will."

"as we seek to establish full equality for America’s gay and lesbian citizens, I will provide more effective leadership than my opponent."

“I feel that all people should be allowed to participate in the Boy Scouts regardless of their sexual orientation.”

"During his 2002 gubernatorial run his campaign distributed bright pink flyers during Pride that declared 'Mitt and Kerry [running mate Kerry Healey] wish you a great Pride weekend! All citizens deserve equal rights, regardless of their sexual preference.' Romney also argued that he would not only support gay friendly policies but would fight on behalf of the gay community to secure benefits such as domestic partner benefits and hospital visitation rights for same-sex couples."- Bay Windows 3/3/2005

"There will be children born to same-sex couples, and adopted by same-sax couples, and I believe that there should be rights and privileges associated with those unions and with the children that are part of those unions." On another occasion, his spokesman "declined to state Romney's position on whether homosexual couples should be allowed to adopt, and declined to say whether the governor opposes gay adoptions."- State House press conference, 6/15/2005- Boston Globe, 3/2/2006

"On Gay Rights: All citizens deserve equal rights, regardless of their sexual orientation. While he does not support gay marriage, Mitt Romney believes domestic partnership status should be recognized in a way that includes the potential for health benefits and rights of survivorship."- Romney's 2002 campaign website

At "Liberty Sunday" Romney had this to say:

"They not only reject traditional values, they reject the values of our founders and they cast aside the wisdom of the ages."- LibertySunday.com

"What (the judges) ignored is that marriage is not primarily about adults, marriage is about the nurturing and development of children ... every child deserves a mother and a father," he said.- WHDH-TV

Romney never shows his true colors. Instead, he manipulates his words so that he is in his best light with whomever he is speaking. When speaking to gays, he uses the term "gay". When he is speaking to people opposed to equality, he uses the term "homosexual". For those who are not in the know, "homosexual" is seen in the gay community as having a derogatory nature because it shows a focus on sexuality rather than the human individual. The politicly correct term would we "gay" or "lesbian" and Romney knows this well. This is no "tar-baby" incident.

And he had this to say about abortion rights:

"I believe that abortion should be safe and legal in this country. ... I believe that since Roe v. Wade has been the law for 20 years we should sustain and support it. "

And on the subject of the “Morning after pill”:

"..it’s an effective morning after pill and I think it would be a positive thing to have women have the choice of taking morning-after pills….I would favor having it available."

The list goes on and on. Romney backed RU-486, waiting periods for gun purchases, indexing the minimum wage to inflation, and numerous other progressive causes.

Mitt Romney has always been a thoughtful, pragmatic Republican of the Northeastern tradition.

Until now.

The “new and improved” Mitt Romney is running for president. Gone is the cold sober realist of the past. Gone is his advocacy for gay rights and abortion rights. He is pandering to the GOP’s bigot base. READ MY LIPS Mr. Romney, "No more LIES."

Canadian MPs have rejected a proposal by the governing Conservative party to overturn a law allowing gay marriage, BBC reports. Twelve Conservative MPs, including several members of the cabinet, joined Liberals and Canada's other opposition parties to defeat the motion 175-123.

Conservatives have conceded defeat.

"The vote was decisive and obviously we will accept the democratic resolve of the people's representatives," Said Conservative Prime Minister Stepen Harper.

We should all take a few minutes to read Prime Minister Paul Martin;s speech which he gave last year.

Tuesday, December 12, 2006

Tom Lang is the founder and co-director of KnowThyNeighbor.org, a grassroots coalition of volunteers who run an open forum blog about gay equality and marriage. It was this group that posted the names and addresses of the people who signed the petition to ban gay marriage, in an attempt to promote dialog between people of opposing opinions. Organized hate groups have screamed that this amounts to intimidation since before the website even opened, yet as usual they have failed to prove their accusations.

Instead, KnowThyNeighbor.org has given people of all opinions a place where they can talk directly to each other, and in doing so has opened the door for understanding, and peace. Another of the many benefits this website has given our society is the ability to check to see if our signatures were stolen, and an easy link to report it to the proper channels. Mr. Lang and his co-director Aaron Toleos have kept readers up to date on the latest events concerning the marriage equality struggle, and have served as watchdogs for the numerous unethical tactics used by those seeking to ban gay marriage.

In the latest article posted on his website, Mr. Lang gives a review of the rallies that the hate group known as VoteonMarriage.org has attempted to organize recently, and their shortcomings.

"Thanks to all those who came out in support of Equal Rights. See the below photos and re-caps of the events. And remember, there still is one more rally to go. Saturday December 16th Worcester City Hall 1:30 PM Be There!"Click here for the full story.

The website BenLaGuer.com does a great job of providing all the background you need on this case, so I will stay focused on the single issue that bothers me most. The question that DA John Conte seems to be ready to retire from office and never answer is, "why did fingerprint evidence never get shared with Ben LaGuer?" There were four fingerprints on the phone used to tie up the victim of a brutal rape, and we LOST them?! I'm not kidding folks. They are gone, and John Conte is mum on the subject. His office's official position on this is that the evidence would not have mattered anyway in the conviction of Ben LaGuer 23 years ago. Excuse me for not having a degree in jurisprudence, but how can physical evidence that suggests someone else was the assailant rather than Ben LaGuer not be pertinent? That's right, the fingerprints are proven NOT to be LaGuer's. This report was ready 2 days after the crime, but we are asked to believe that six months later the DA's office had still not received the report. This evidence would have never been shared with defense, but they found it on their own....18 years after Ben LaGuer was convicted without any physical evidence linking him to the crime. The fingerprints are missing off the report, and the chain of custody that would lead us to who had the evidence last is not being shared.

Call your state representative, call the governor's office, call Worcester DA John Conte's office and demand that there be an investigation as to why this happened so that it doesn't happen again. Ben LaGuer never received a fair trial because he did not have a chance to show the jury that it was someone else that pulled that phone off the wall, and someone else that committed this crime. All he wants now is a chance to be heard once again. Is that too much to ask of us from a man who turned down a plea bargain under which he would have served just two years, and has maintained his innocence at the cost of his freedom for almost a quarter of a century? No, it is not. If he is truly guilty the evidence against him will show that, and he will remain in jail to serve his life sentence. Negligence by the prosecution is blatant and obvious, and we need to correct this so justice is served.

If I could address DA John Conte directly I would say, "The jury didn't see a stitch of physical evidence in this case, yet you want us to believe that fingerprints are not pertinent? Come on John, that's a lie and you know it." And trying to hide behind a 2002 DNA test that supposedly linked LaGuer to the crime won't work either. Four highly credible DNA experts have looked at the evidence and document trail and see contaminaion written all over it. If you have that much faith in the DNA test then why are you so afraid of a new trial? C'mon, its time to get this all out into the open and a new trial is the appropriate place to do it.

Sunday, December 10, 2006

YouTube.com is a great source of information, as well as a way for people to express themselves to the world. There seems to be no limit to what you can find one this site, ranging from the bizzare, to sex, to graphic violence. The site uses a form of viewer self censorship, where if you think a video is in violation of the terms of service, you report it, selecting from a short list of reasons the video is being flagged. After that, the video is reviewed by YouTube.com, and the video is hidden from common view. You must then hit a "confirm" button in order to view it. The site does not seem to allow children to set up an account, but the videos that have not yet been "flagged" as inappropriate are still easily viewed by anyone without an account. The title of the article has a link to one such video that illustrated my point as of Sunday, December 10, 2006 when I came across this.

YouTube.com's position on this is clearly stated in it's posted regulations. Whatever is posted is the responsibility of the poster, and they wish to distance themselves of any liability. With the growing availability of video recordings, and children's inherent desire to mimmick what they see others do, wouldn't the public be better served if YouTube.com made it's site less available? NetNanny.com has been keeping children safe for years, and is simple to set up. Knowing what your children are watching on the internet is a main responsibily of the modern parent. There are many things out there that can confuse and subvert the values you are trying to instill in your children.

The answer to the YouTube.com problem is two fold; ask sites like this to police themsleves better, and keep an eye on what your children see by being more involved. In the end we will only have ourselves to blame if someone were to get hurt because of children watching and immitating the violence they see. Surf this site yourself for a few moments and the problem becomes clear. If you are not impressed by what you find on your own, try using a search word like, "gang" and see what videos pop up. Once the shock of knowing gang members are talking directly to our children starts to subside, look down in the bottom lefthand corner of the screen just under "ratings" and you can see that most of these videos have been viewed tens of thousands of times. I am not one for censorship, but we have an obligation to protect our children while their minds are still forming.

Saturday, December 09, 2006

I've been gone a few days, but I was really pleased to read the Reply Brief attorney James C. Rehnquist and his team at Goodwin Procter LLP filed with the SJC earlier this week in their bid to overturn Benjamin LaGuer's 1984 rape conviction. They make no bones about calling the Commonwealth (in this case represented by outgoing Worcester DA John J. Conte) out on its shameless use of distractions, distortions, and what the brief calls "misstating the factual record" (I think the technical term is 'lies'), in defending what the brief calls "its indefensible conviction of Mr. LaGuer."

As Live, Love & Learn readers know, LaGuer has been fighting a wrongful rape conviction for 23 years. In November 2001 a young lawyer unearthed a report showing that four fingerprints lifted from the base of the trimline telephone, the cord of which the perpetrator used to bind the victim's wrists, did not match LaGuer's. That information was never shared with the defense, a clear violation of LaGuer's constitutional right to a fair trial. The State Police has subsequently lost or destroyed the actual prints retrieved from that phone. Rehnquist filed his opening high court brief with the SJC on September 11. The Commonwealth filed its Opposition Brief on November 15. Of its 50 pages only a few deal with legal arguments as to why this withholding of exculpatory evidence should not merit a new trial. The rest is a recitation of the horrific nature of the crime (which is not at issue) and a selective and dishonest account of the trial and subsequent events through which the Commonwealth tries to make the claim that the case against LaGuer was so overwhelming (it was not) that four fingerprints on an item used in the commission of the crime would have had no effect on the jury.

Read Rehnquist's entire Reply Brief HERE. Or just peruse the following excerpts including several below the flip:

On the commonwealth's tactics Rehnquist tells the justices:

"Astonishingly, despite repeated admonitions during earlier stages of this appeal, the Commonwealth persists in misstating the factual record and making irrelevant post-trial allegations. At this stage, such conduct leaves one only to conclude that the Commonwealth aims to distract the Court from the issues in this appeal... a comprehensive list of the Commonwealth's misstatements and the irrelevant post-trial allegations would consume far more space than a Reply permits.... In short, the Commonwealth's persistent misstatements of fact and irrelevant post-trial allegations are nothing more than attempts to provide misinformation and to distract the Court from the issues in this appeal. Such attempts should not be rewarded."

On the 2002 DNA test which supposedly linked linked LaGuer to the crime Rehnquist has this to say:

"Beyond its reliance of numerous misstatements and mischaracterizations, the Commonwealth tries to justify its suppression of exculpatory evidence by repeatedly making post-trial allegations concerning DNA testing... no court has yet considered the relevance and admissibility of such evidence (indeed, no court has ever seen any purported DNA report), and issues such as reliability and chain of custody must be addressed, before such evidence may be considered, Indeed, the very fact that the Commonwealth has never sought to admit any DNA-related laboratory or analytical reports before any court cautions against this Court's consideration of any such alleged evidence now."

On the overall content of the Commonwealth brief Rehnquist says,

"The issue raised in Mr. LaGuer's opening brief is very clear - the Appeals Court erred in affirming the trial court's denial of Mr. LaGuer's motion for a new trial because the Commonwealth violated Mr. LaGuer's constitutional rights by first suppressing, and then losing or destroying, exculpatory fingerprint evidence. Rather than address this argument head-on, however, the Commonwealth spends most of its brief misstating the record, emphasizing the horrific nature of the crime, and relying on post-trial allegations in an effort to persuade the Court to ignore the Commonwealth's clear violation of Mr. LaGuer's constitutional rights. The Commonwealth's flagrant attempt to inflame the passions and prejudices of the Court should not be tolerated."

On the legal arguments advanced in the Commonwealth brief:

"Incredibly, the Commonwealth leads its opposition by arguing that, despite the Commonwealth's suppression of the exculpatory fingerprint report for over eighteen years, Mr. LaGuer's trial counsel somehow knew that this crucial report existed but made a tactical decision to proceed to trial without it. This argument not only is factually flawed, but also ignores well-established legal precedent requiring the Commonwealth to turn over all exculpatory evidence to the defendant... Any suggestion that Mr. LaGuier's trial counsel knew about the report but made a "tactical decision" to proceed to trial without it is simply belied by the record."

On the Commonwealth's attempt to shift the blame to LaGuer for not trying hard enough to access the fingerprint evidence Rehnquist points out:

"[T]he Commonwealth asserts that Mr. LaGuer's counsel should have done more to seek out this crucial evidence. Setting aside the fact that, as explained above, Mr. LaGuer's trial counsel did not know this evidence existed, the Commonwealth's argument is patently absurd, given that Mr. LaGuer's trial counsel made multiple written and oral requests, to no avail, specifically for this type of evidence. Further, the Commonwealth's argument completely ignores well-settled precedent affirmatively requiring the prosecution to turn over to a criminal defendant all potentially exculpatory evidence in its possession, even if not requested. In making these arguments, the Commonwealth tries to shift to the defendant the burden of seeking out exculpatory evidence. That view, however, is plainly at odds with the Commonwealth's constitutional obligations. The Commonwealth's suggestion that the law obligates defense counsel to do more than make multiple specific requests for exculpatory evidence is untenable."

As for the Commonwealth's assertion that, hey no one ever told the prosecutor about the fingerprint report, Rehnquist retorts:

"[T]he Commonwealth tries to absolve itself by claiming that the fingerprint report was never in the trial prosecutor's possession. Even if true, though, this claim is irrelevant because the report itself reflects that both the State Police crime lab and Det. Carignan knew of the four non-matching prints and the report."

On what he calls the "perverse logic" behind the Commonwealth's attempts to undermine LaGuer's constitutional rights Rehnquist writes:

"The danger of the Commonwealth's position to defendants' constitutional right to a fair trial is particularly evident in this case. For eighteen years, the Commonwealth suppressed from Mr. LaGuer evidence implicating another individual. In the course of suppressing that evidence, the Commonwealth lost or destroyed the back page of the report and the actual fingerprints themselves, denying Mr. LaGuer any opportunity to examine that evidence for its exculpatory value. Then, upon finally revealing that the evidence exists, the Commonwealth attempts to use the prejudice it created against Mr. LaGuer by arguing that Mr. LaGuer can only speculate as to the benefit the evidence might have provided to his defense. This perverse logic is essentially a blueprint for the Commonwealth's violation of the defendants' constitutional rights with impunity - turning the disclosure duties of Brady and Tucceri into, as the Court feared, an "empty promise.""

Less than a month now remains until oral arguments, which are set for January 4, 2007 (yes, the same day Deval Patrick is inaugurated). The issue now is whether LaGuer got a fair trial. By hiding potentially exculpatory evidence from the defense the Commonwealth, it seems clear, failed to live up to its constitutional obligations. The next question is whether or not LaGuer actually committed the crime. If the SJC overturns the verdict, that will be something for a new jury to decide. The Commonwealth's misleading brief notwithstanding, the evidence I've studied clearly indicates that he did not.

Tuesday, December 05, 2006

Aaron Toleos' Video Interview with VoteonMarriage Member.

God bless Aaron Toleos! Who knows why he didn't post this on his own website, knowthyneighbor.org, but this video says it all about the stark hypocracy and ignorance of the struggle against gay rights. This woman reduces herself and VoteonMarriage.org with her smug antics. At one point she even sticks her tongue out at Gregg Kimball, treasurer of KTN, who is conversing with her. Having failed at proving a need to end gay marriage, I guess this is what we can expect from here on.

Recommended Reading

Veteran Ben LaGuer

Let me finally return to Dwight Macdonald and the responsibility of intellectuals. Macdonald quotes an interview with a death-camp paymaster who burst into tears when told that the Russians would hang him. "Why should they? What have I done?" he asked. Macdonald concludes: "Only those who are willing to resist authority themselves when it conflicts too intolerably with their personal moral code, only they have the right to condemn the death-camp paymaster." The question, "What have I done?" is one that we may well ask ourselves, as we read each day of fresh atrocities in Vietnam—as we create, or mouth, or tolerate the deceptions that will be used to justify the next defense of freedom.

– Chomsky, The Responsibility of Intellectuals 1967

Words to Remember:

"Juris praecepta sunt haec: honeste vivere; alterum non laedere; suum cuique tribuere"(These are the precepts of the law: To live honorably; to hurt nobody; to render to every one his due.)

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." -Section 1 of the 14th amendment to the US Constitution

Never Forgotten; Sadly Missed

Lawrence King

GLBT Legends

Paul McMahon and Ralph Hodgdon in 2007

"If you want to be important -- wonderful. If you want to be recognized -- wonderful. If you want to be great -- wonderful. But, recognize that he who is greatest among you shall be your servant. That's a new definition of greatness." -Rev. Dr. Martin Luther King Jr.

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